SRINIVASAN.J
This appeal by special leave is directed against the judgment of the High Court
of Allahabad confirming the order of conviction passed by the III Additional
Sessions Judge, Kanpur n a charge under Section 302 I.P.C.
against the appellant and sentence for rigorous imprisonment for life.

2. The
case of the prosecution was as follows:

On
April 7, 1977 at about 3.30 P.M. the victim Shree Prakash was gong in rickshaw
with is servant Nanhu Singh (PW-3) followed by Balkrishan Bajpai (PW-1) and (PW
-2) in another rickshaw in the crossing of Alumandi, Cooperganj, Kanpur within
the area of the police station Anwar ganj. At that time the appellant arrived
at the spot sitting on the pillon of a motor cycle driven by another person,
shot the victim with a pistol and sped away. The witnesses proceeded to the
police station which was very near the place of occurrence and lodged a
complaint around 3.45
PM The victim was
taken to the hospital where he was declared dead. While PW 1 stayed at the
police station for giving a statement, PW 2 went to inform the sister of the
victim. The name of the appellant was mentioned by PW 1 in the FIR who could
not however give the name of the person who was driving the motor-cycle though
he claimed that he could identify him on seeing his face. The appellant could
not be traced till he surrendered in Court on 13.5.1977

3. On
that date itself the appellant moved an application before the C.M.M.Kanpur
claiming that witnesses were not known to him and that a test identification
parade should be ordered. The C.M.M. dismissed it on the ground that the offence
being one exclusively triable by Court of Sessions, he could not pass orders
thereon. That order was challenged in the Court of Session, Kanpur. The latter allowed the prayer by
order dated 14.6.77 and directed the appellant to be up for identification. But
the identification parade was not held.

4. The
trial went on and the prosecution examined as many as nine witnesses, including
three eye witnesses. The accused while putting forward a case of total denial
examined three witnesses. The trial judge accepted the case of the prosecution
and found the accused guilty of murder punishable under Section 302 I.P.C. On
appeal, the High Court confirmed the same.

5. In
this appeal, learned counsel has urged five contentions - (1) The failure of
the police to put up the appellant for identification parade inspite of an
order of the Court of Sessions is fatal to the prosecution inasmuch as the
appellant has challenged the claim of PWs 1 to 3 that they knew his already.
(2) The non-examination of the rickshaw pullers is a vital factor omitted to be
considered by courts below; (3) The evidence of PW3 runs counter to the medical
evidence and deserves to be rejected; (4) The 'conduct of PW 1 after the
occurrence was unnatural and he should have been disbelieved; (5) There was no
motive for the appellant to commit the offence.

6. We
will presently consider them seriatim. The first contention is pressed rather
strongly by the learned counsel on the basis of an observation made in Shri Ram
Versus The State of U.P. (1975) 3 S.C.C. 495. The Court said in that case that
the circumstance that the accused had voluntarily accepted the risk being
identified in a parade but was denied that opportunity was an important point
in his favour. In that case the trial court was influenced by the aforesaid
circumstance and acquitted the accused. On appeal the High Court rejected the
same as inconsequential by observing that oral testimony of witnesses, eve if
not tested by holding an identification parade, can be made the basis of
conviction if the request made by the accused is groundless and the witnesses
knew the accused prior to the occurrence. This Court while holding that no rule
of law required that the oral testimony of a witness should be corroborated by
evidence of identification and that such evidence is itself a weak type of
evidence observed.

"But
the point of the matter is that the Court which acquitted Shri Ram was
justifiably influenced by the consideration that though at the earliest stage
he had asked that the identification parade he held, the demand was opposed by
the prosecution and the parade was therefore not held." Moreover, in that
case there was serous infirmity in the testimony of the eye witnesses who
deposed against the accused and this Court found it to be unrealistic and
unacceptable.

7. The
purpose and evidentiary value of identification parade have been considered in
a number of case. In Inre Sangiah 49 Cr. L.J.89 Rajamannar, J discussed the
matter at length and said thus:

I am
unable to find any provision in the Code which entitles an accused to demand
that an identification parade should be held at or before the enquiry or the
trial. An identification parade belongs to the stage of investigation by the
police. the question whether a witness has or has not identified the accused
during the investigation is not one which is in itself relevant at the trial.
The actual evidence regarding identification is that which is given by the
witnesses in the Court. The fact that a particular witness identification
parade is only a circumstance corroborative of the identification in a Court.
If a witness has not identified the accused at the parade or otherwise during
the investigation the fact may be relied on by the accused, but I find nothing
in the provisions of the Code wh ch confers a right on the accused to demand
that the investigation should be conducted in a particular way. As M.W.N. 427
"Identification Parades are held not for the purpose of giving defence
advocates material to work on, but in order to satisfy investigating officers
of the bone fine of the prosecution witnesses" In AIR 1948 Lah 303
Blacker, J.

held
thus:

"Whenever
an accused person disputes the ability of the prosecution witness to identify
him, the Court should direct an identification parade to be held save in the
most exceptional circumstances" With great respect to the learned Judge I
am unable to find any provision of law which compels the Court the so direct a
parade. It is not clear from the judgment whether the Court making an enquiry
or holding the trial should stay its proceedings and direct the In may opinion
it does not take into account the important fact that an identification parade
is a part of the investigation and once the case has reached the stage of an
enquiry before the Magistrate the investigation is at an end all that takes
place in Court form part of the record of the case.

Now it
is quite clear that statements made at an identification parade are not
substantive evidence at the trial.

It
must be very embarrassing to the Magistrate making an enquiry to listen to
statements made by the witnesses at an identification parade which will not be
evidence at the enquiry. Further it is not incumbent on the prosecution to examines
all the witnesses cited by them and all these who took part in the
identification parade. It will then mean that the Magistrate has heard the
statement of witnesses who will not be examined at the enquiry. If on the other
hand it is suggested that a different Magistrate should hold the identification
parade it appears to me that there is no provision whatever for such a course
when a particular Magistrate is seized of the case. The observations In AIR
1946 Lah 48 are rally obiter because that case dealt with a regular appeal
against the conviction by a Court of Session.

In
that case the Magistrate who made the enquiry refused an application by the
accused to arrange for an identification parade on the following grounds viz.
that the witnesses knew the accused before and that the application was made
only for the purpose of delay. The learned Judges held that the reasons given
by the magistrate were not sound.

It is
true that they went on to observe that should any serious question of identity
arises during the course of the trial the ability of the witnesses to identify
the accused may be put to tost before the trial. With great respect I do not
agree. If a case is posted for trail any test as to the ability or
creditability of the witnesses should be decided only in Court and not by means
of an identification parade, the proceedings at which will not form part of the
record of the Court.

8. In Kanta
Prashad Versus Delhi Administration AIR 1958 SC 350, this Court held that
failure to hold test identification parade does not make inadmissible the
evidence of identification in Court and that the weight to be attached to such
identification is a matter for the Courts of fact and it is not for the Supreme
Court to reassess the evidence unless exceptional grounds are established
necessitating such a course.

9. In
State versus Dhanpat AIR 1960 Patna 582
cited before us, it was held that if the witnesses do not give the name of any
accused, it is necessary to hold a test identification parade and where a
witness gives the name of the accused, ordinarily no such parade is necessary.
The Court however said that if any accused hold out a challenge and says that
he will not be identified by the witnesses or makes a prayer that he should be
put upon a test identification parade, such a parade must always be held in
order to meet the challenge. The Court also said that if the accused was
arrested on the spot and was in custody from that time upto the date of trial,
there could be no question at all about his identity.

10. A
Division Bench of the Allahabad High Court dealt with the entire subject of
identification Parade in Ashrafi & Anr. Versus The State 1961 (1) Crl. L.
J.340. It was held that the identification of an accused who is already known
to the identifier is futile.

11. In
Budhsen & Anr. Versus State of U.P.
AIR 1970 S.C.

132 it
was held that identification parades belong to the investigation stage and
generally held with the primary object of enabling the witnesses to identify
persons concerned in the offence who were not previously known to them, The
legal effect of identification parades was stated as follows:

".....that
certain person are brought to jail or some other place and makes statements
either express or implied that a certain individuals whom they point out are
persons whom they recognized as having been concerned in the crime.

They
do not constitute substantive evidence"

12. In
Tek Chand Versus State AIR 1965 Punjab 146, cited by learned counsel, a Division Bench of the Punjab High
Court held that the accused cannot compel the prosecution to hold their
identification during the investigation and there is no law or procedure under
which the Magistrate could pass such an order. The Bench proceeded to hold that
if such a prayer is made by the accused and the prosecution opposes the same,
it exposes the witnesses of identification to a genuine criticism that they
would probably not be label to identify the offenders correctly if the parade
was held. The Court held that when the request for identification parade was
refused for no valid reason and the court identification was made long
afterwards, the identification evidence in the court could not be relied on,
unless it was a corroborated.

13. In
Jadunath Singh Versus State of H.P. AIR 1971 S.C.363 a Bench of Three Judges
this Court held that failure to hold test identification of accused is not
fatal in all cases.

The
Bench referred to the case law on the subject including the decision of the
Madras High Court in the Sangiah's case and held as follows:

"It
seems to us that the reason given by the pubic prosecutor in the report and the
reason given by the Additional District Magistrate (Judicial) in the order
directing that identification requested for be not held were not valid. The
fact that the chargesheet had been received and the accused had been named by P.Ws
was no justification for not having ordered the test identification. But on the
facts of this case it is clear that PW2 at least knew that accused from before.
As regards PW 3 although he claims to have known the accused, it is clear that
his knowledge of the accused was very scant and if had not been for the
evidence of PW2 we would not have placed reliance on the evidence of PS 3 in
view of the fact that the police did not ask him to identify the appellant.

It is
stated in Phipson on the Law of Evidence, 9th Ed. P.415d as follows:

"In
criminal cases it is improper to identify the accused only when in the dock:
The Police should place him, before hand, with the orders, and ask the witness
to pick him out. Nor should the witness e guided in any way, nor asked "is
that the main"?" We consider that the same is the law in India, if the identify is in doubt.

Accordingly
on the facts of this case we are of the opinion that the trial was not vitiated
because the accused persons were denied identification.

The
same Bench dealt with the State of U.P.
Versus Raju AIR 1971 S.C. 708 and held that in the absence of request from
accused, State is not bound to hold identification parade when they were
arrested on the spot.

14. In
Golam Majibuddin Versus State of West Bengal 1972 Crl. L. J. 1342, another
Bench of three Judges of this Court held that when the witness stated that he
already knew the accused before the day of occurrence and it was not the case
of the accused that he was not known to the witness previously, test identification
would serve no purpose. The same Bench had not consider a converse case in
"Rameshwar singh Versus State of J & K AIR 1972 S.C. 102. The Bench
stated the law thus:

"Before
dealing with the evidence relating to identification of the appellant it may be
remembered that the substantive evidence of a witness is his evidence in Court
but when the accused person is not previously known to the witness concerned
then the identification of the accused by the witness soon after the former's
arrest is of vital importance because it furnishes to investigating agency an
assurance that the investigation is proceeding on right line in addition
furnishing corroboration of the evidence to be given by the witness later in
Court at the trial. From this point of view it is a matter of great importance
both for the investigating agency and for the accused and a fortiori for the
proper administration of justice that such identification delay after the
arrest of the unreasonable delay after the arrest of the accused and that all
the necessary precautions and safeguards are effectively taken so that the
investigation proceeds on correct line for punishing the real culprit. It
would, in addition, be fair to the witness concerned who was a stranger to the
accused because in that event the chances of his memory fading are reduced and
he is required to identify the alleged culprit a the earliest possible
opportunity after the occurrence. It is thus and thus alone that justice and
fair play can be assured both to the accused and to the prosecution. The
identification during police investigation, it may be re-called, is not
substantive evidence in law and it can only be used for corroborating and
contradicting evidence of the witness concerned as given in Court. The
identification proceeding, therefore, must be go conducted that the evidence
with regard to them when given at the trial, enable the Court safely to form
appropriate judicial opinion about its evidentiary value for the purpose of
corroborating or contradicting the statement in the Court of the identifying
witness." On the facts of the case, it was found that the name of the
accused was not mentioned in the FIR. This Court found the witnesss to be
untruthful. This Court found that the High Court had erroneously relied upon
statements recorded under Section 161 Cr. P.C. for the purpose of corroboration
of certain statement made in Court. On that basis, the judgment of the High
Court was set aside and the appellant was acquitted.

15. In
Dharamvir Versus State of M.P. (1974) 4 S.C.C. 150, it was held that no
identification parade was called for as the victim mentioned the names of the
accused in the FIR.

16. In
Mahtab Singh versus The State of M.P. (1975) 3 SCC 407 the Bench held that the
need for identification parade arises only if the assailants are not previusly
known to the witnesses. It is to be noticed that it is the very same Bench
which dealt with "Shri Ram's case (supra) relied on by the appellant and
referred to by us in the beginning.

17. In
Harbhajan Singh Versus State of J & K AIR 1975 S.C.

1814 a
Bench of Three Judges followed Jadunnath Singh's case (supra) and held that
failure of investigating officer to hold identification parade is not
necessarily fatal.

18. In
Kanan Versus State of Korala, AIR 1979 S.C. 1127, the Court held that where a
witness identifies an accused who is not known to hm in the Court for the first
time, his evidence is absolutely valuless unless there has been a previous test
identification parade to test his power of observation.

19. In
Narendra Singh Versus State of H.P. (1987) 2
S.C.C.

236,
the attack on deceased was witnessed by an uninterested and independent witness
who knew the accused already. That witness snatched from the accused the Kirpan
and the turban when he escaped and deposited the same in the police station. the
FIR was lodged within 15 minutes and the accused was named therein. The Court
held that the question of identification was of no consequence.

20. In
Romesh Kumar Versus State of Punjab, 1993 Crl. L.J. 1800, a Bench of Two Judges
held that holding of identification parade was not necessary as the murder took
place in the rickshaw and the rickshaw puller stated that the knew the accused
and that conviction based primarily on his testimony was proper.

21. On
a perusal of the above rulings it is clear that the failure to held the test
identification parade even after a demand by the accused is not always fatal
and it is only one of the relevant factors to be taken into consideration alongwith
the other evidence on record. if the claim of the ocular witnesss that they
knew the accused already is found to be true, the failure to hold a test
identification parade is inconsequential.

22.
Turning to the facts of this case, it is seen that PW 1 had mentioned the name
of the accused in the FIR which was given within 15 minutes of the occurrence.
The other two eye witnesses, PW 2 and PW3 also knew the accused previously.

The
crucial factor is that the accused previously. The crucial factor is that the
accused was related to the deceased as a son his "Sala" and PW 1 was
also related to the deceased. The accused had never denied the relationship.

As the
trial Judge has observed, " there is not a scintilla of evidence"
that PW 1 had a grudge against the accused.

There
is also no evidence that the wife of the deceased had any enmity with the
accused. She would not have allowed a false case to be foisted on her brother's
son. The accused was not traceable from 7.4.77 to 13.5.77. On the facts of the
case, his application for the test identification parade on his surrender after
such a long time does not appear to be bone fide. In any event, the evidence on
record as accepted by the Courts below is sufficient to prove the guilt of the
accused. Further the point does not seem to have been argued before the trial
court or the High Court.

On the
facts of this case there is no doubt that the failure to hold a test
identification parade in spite of an order passed by the Sessions Court is not
fatal to the prosecution.

23.
The second contention is without any merit. The evidence adduced by the
prosecution is adequate to prove the charge. The non-examination of another
person who was on the scene of occurrence does not make the evidence of PWs 1
to 3 unreliable. It is needless to point out that evidence has to be weighed
and not counted.

24.
The third contention is based on the statement of PW3 in his deposition that Shri
Prakash sustained injury in the back whereas the medical report showed that two
gunshot wounds were in the left side chest upper part and inner to nipple.
Another gunshot wound was found in the spine medial part in thoracic region.
The fact that PW3 was travelling in the same rickshaw as his master, the
deceased is established beyond doubt. His clothes which got stained by the
blood which oozed out of the wounds of the deceased were taken by the
investigating officer. The High Court has discused this aspect of the matter at
some length and we agree with the reasoning of the High Court. As pointed out
by the High Court the witness having seen the exit wound on the back of the
deceased bleeding, thought that he had been hit in the back. Hence we reject
this contention.

25.
The fourth contention is equally without any substance.

The
argument is that PW1 would have in the first instance taken the victim to the
hospital instead of police station and in any event would have accompanied PW 3
to the hospital. According to the learned counsel the fact that PW 1 stayed in
the police station to given a statement after sending PW3 and the victim to the
hospital throws considerable suspicion on his credibility. We are unable to
accept this contention. The evidence shows that the victim died immediately
after the firing. The witness thought fit to stay back at the police station to
get his complaint registered. Here again, the reasoning of the High Court is
unassailable and we agree with the same.

26.
The fifth and the last contention that there was no motive for the appellant t
commit the offence is also without any merit. There is ample evidence on record
to show that there was a dispute between the appellant and the deceased which romainod
unsettled. The way in which the deceased was killed shows that the appellant
had the intention to commit the offence of murder and accordingly carried out
the same. But it is well settled that when the fact of murder has been proved. there
is necessity to prove motive.

27. In
sum, the appeal has to suffer a dismissal and is accordingly dismissed.